SAN FRANCISCO (CN) - An Oakland, Calif., police officer who investigated the death of local journalist Chauncey Bailey urged the 9th Circuit to revive his civil rights case.
Before he was gunned down in 2007, Bailey had been editor-in-chief of The Oakland Post and working on a story about the bankruptcy of Your Black Muslim Bakery.
Sgt. Derwin Longmire caught the case and obtained a confession, but that suspect later recanted and allegedly accused Longmire of beating the confession out of him.
While the investigation honed in on bakery owner Yusef Bey IV and his associate, Antoine Mackey, Internal Affairs with the Oakland Police Department looked in to whether Longmire had compromised the case because of his close relationship with the bakery and Bey.
After serving a 20-day suspension, the black veteran homicide detective claimed in 2010 that he had been treated unfairly because of his religion and association. Longmire also said the department had leaked false information about him to the media, while simultaneously concealing exculpatory information.
He named Oakland, then-assistant police chief Howard Jordan and Lt. Sean Whent as defendants.
Finding no evidence of a racial pretext for the investigation of Longmire, a federal judge granted the city and its officers summary judgment in 2011.
Represented by civil rights attorney John Scott, Longmire took his case to a three-judge panel of the 9th Circuit, hoping to show that the equal protection clause supports a perceived-as-discrimination claim.
Christine Maloney of Oakland-based Foster Employment Law stood for the city. She questioned the importance of undertaking a constitutional issue while other issues remained pending.
"It is not the court's business to decide interesting and abstract matters of law when there is not a current controversy present," Maloney said.
There were no allegations that the defendants discriminated against Longmire because of his perceived Muslim affiliation, she added. "Longmire was perceived to be friends with a murderer, whom he was investigating," Maloney said.
Regarding Fourth Amendment violations, Scott argued that Jordan or Whent violated Longmire's right to privacy by both disclosing the allegedly compromised investigation and "leaking information to the press about his [Longmire's] placement on paid administrative leave."
"Cases indicate that if an officer has a reasonable expectation of privacy, that can trigger a Fourth Amendment right," Scott said.
Maloney countered that, before the information appeared in print, Longmire's attorney announced the administrative leave in a television interview. Maloney also stressed that the Fourth Amendment is "specific to search and seizure by the government," and does not encompass disclosure of information under these circumstances.
Longmire's third argument was that he suffered retaliated by being kept on paid administrative leave even after Jordan decided to withdraw the termination recommendation. Scott said that Longmire was "kept in the dark" and not told that he had been "cleared" of compromising the Bailey investigation.
Maloney argued that the evidence fails to suggest pretext for retaliation. "The First Amendment does not constitutionalize an employee grievance," she said. "That's what we have here."
Judges Michael Hawkins, N. Randy Smith and Jacqueline Hong-Ngoc Nguyen heard the case for the 9th Circuit.
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